SUMMARY OF SUBMISSIONS ON THE MAINTENANCE BILL [B72-98]
AS ON 28 AUGUST 1998
PORTFOLIO COMMITTEE ON JUSTICE (NATIONAL ASSEMBLY)
INDEX


Submissions marked man1 to man25 are not included in the summary because their comments are not based on the Bill tabled in parliament, but on the draft Bill which was prepared by the Department for comment. Man 26 is the South African Law Commission's Interim Report on Maintenance

WRITTEN SUBMISSIONS WERE RECEIVED FROM THE FOLLOWING PARTIES:
1. MAN 27 - PHILIP KALMONOWITZ
2. MAN 28 - MAINTENANCE ACTION GROUP
3. MAN 29 - LAW SOCIETY OF SOUTH AFRICA
4. MAN 30 - THE LAW SOCIETY OF THE CAPE OF GOOD HOPE
5. MAN 31 - MAINTENANCE ASSISTANCE SERVICES
6. MAN 32 - FOCUS ON ELDER ABUSE
7. MAN 33 - TRANSITIONAL NATIONAL DEVELOPMENT TRUST
8. MAN 34 - SOUTHERN AFRICAN CATHOLIC BISHOP'S CONFERENCE
9. MAN 35 - S A NATIONAL COUNCIL FOR CHILD AND FAMILY WELFARE
10. MAN 36 AND MAN 36a SOUTH AFRICAN LAW COMMISSION
11. MAN 37 - MIKE HORTON
12. MAN 38 - MAGISTRATE :PIETERMARITZBURG
13. MAN 39 - NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS
14. MAN 40 - DIRECTOR OF PUBLIC PROSECUTIONS: EASTERN CAPE
15. MAN 41 - BLACK SASH
16. MAN 42 - HUMAN RIGHTS COMMISSION
17. MAN 43 - MR A M RANTSELA
18. MAN 44 - MS J THIELE
19. MAN 45 - WOMEN ON FARMS PROJECT

PREAMBLE
MAN 27 (Philip Kalmonowitz):
A. The Bill is in conflict with the Constitution, particularly section 9, dealing with equality, since the Common Law provides for a reciprocal benefit of support. The Bill seeks to benefit children unfairly at the expense of their parents, and fails to provide for the support of parents when they are aged and/or disabled. He suggests that this be reflected in the Preamble as well. He also suggests that the Preamble refer to a number of specific international instruments relating, amongst others, to people with disabilities and the aged, and not only to the International Convention on the Rights of the Child.

MAN 30 (Law Society of the Cape of Good Hope):
The Bill focuses on the child only and no reference is made to Conventions dealing with the rights and protection of women or persons to whom the maintenance should be paid for the support of children. It is suggested that the Bill might be given wider application by including reference to these international instruments.

MAN 35 (SA National Council for Child Welfare):
The Preamble is supported. However, there is a deep concern regarding the implementation of Article 27 of the Convention on the Rights of a Child. Where the judicial maintenance system cannot be used in some cases, eg abject poverty, provision should be made in the Bill for the court to intervene, eg by making a recommendation that the applicant in question should qualify for a State grant.

MAN 36 and 36a (South African Law Commission):
The Bill seems to approach the issue of maintenance from the point of view that provision of child support is the most important component of a maintenance system without recognising the other relationships that can give rise to a duty of support at Common Law. This approach does not recognise the fact that the duty of support between a parent and child is a reciprocal one and can upset the application of the Bill to other maintenance obligations which are not based on a parent-child relationship and may have the effect that persons not falling within the scope of the Bill will have to institute a civil claim for maintenance. The Bill would also seem to be attempting to codify the duty of support owed by a parent to a child. It is suggested that bare essentials which are mentioned in the Bill cast this duty of support in very narrow terms. It is argued that if the intention of the Bill is to provide guidance to the courts on the determination of an appropriate amount of maintenance, then to partially codify the Common Law will not serve this purpose and it is suggested that clause 16 be deleted and that the power of the Minister to make rules as provided for in clause 40(c) would suffice.

MAN 42 (South African Human Rights Commission):
The preamble locates the context of private maintenance in the arena of children and children's rights and requirements. However, it is important to acknowledge that the issue also has strong gender implications, as the role and responsibility of child rearing falls disproportionately on women. It is recommended that the role of women as primary care givers, and those who suffer the financial hardships in cases of defaults in payment, should be expressly acknowledged in the preamble.

CLAUSE 1
MAN 30 (Law Society of South Africa):
The terms "child" and "parent" should be defined.

MAN 35 (SA National Council for Child Welfare):
All definitions are acceptable. It is however recommended that the definition contained in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), pertaining to section 11(2), which spells out persons against whom a maintenance order is not applicable, should be included in the Bill to make it easier in practice.

MAN 36 (South African Law Commission):
Definition of "maintenance order" is similar to that contained in the 1963 Act. This definition does not link up with the provisions of the Bill dealing with an order for medical expenses (Clause 17(1)(a)(iii) and 17(1)(b)(ii). This leads to the interpretation that an order for medical expenses is not included in the definition of maintenance order. This is problematic when it comes to the enforcement of maintenance orders and particularly the enforcement of "medical orders". It is proposed that the definition of "maintenance order" in clause 1 be amended to remove the word "periodical", since a maintenance order is currently defined as a "periodical payment of a sum of money", thereby excluding medical expenses, which are not always periodical. Consequential amendments are proposed to clause 17.

MAN 37 (Mr Michael Horton):
The reproduction of the 1963 Act means that some clauses are still extremely unwieldily and not good drafting. Clause 17, for instance, is unwieldy because of the lack of a definitions for "applicant", "respondent" or "beneficiary".

CLAUSE 2
MAN 29 (Law Society of South Africa):
The divorce courts established in terms of the Administration Amendment Act, 1929, read with the Divorce Court Amendment Act, 1997(Act No. 51 of 1977), would not appear to have the same powers accredited to the maintenance courts in terms of the proposed Act. It is suggested that in addition to extending the powers of the Bill to the High Courts the aforementioned divorce courts be accredited with the same powers, especially as regards the conducting of enquiries and powers to make appropriate orders in terms of the proposed Act.

MAN 33 (Transitional National Development Trust):
Matters relating to maintenance should be placed under the jurisdiction of the Family Courts.

MAN 35 (SA National Council for Child Welfare):
Pending the introduction of the Family Courts the issue of maintenance can be handled by the maintenance courts as suggested.

CLAUSE 3
MAN 35 (SA National Council for Child Welfare):
The only concern regarding clause 3 is how people in rural areas are going to access the service provided in this legislation and it is suggested that consideration be given to the use of existing structures.

CLAUSE 4
MAN 30 (Law Society of the Cape of Good Hope):
Maintenance officers should be required to equip themselves for such position with appropriate financial and legal knowledge. Knowledge and/or experience in this field should suffice. It is not suggested that such positions require academic training at university level.

MAN 35 (SA Council for Child Welfare):
Clause 4(1)-(2) is acceptable. However, it is important for maintenance officers to have a knowledge of the Child Care Act. Training not only in legal matters but also in human resources is crucial.

MAN 39 (National Association of Democratic Lawyers):
The Bill affords too much discretion to maintenance officers. The Bill gives maintenance officers the discretion to decide whether or not-
* an enquiry should be instituted once a complaint has been lodged (clause 6);
* to take statements from people who may be able to "give information of material importance", "to gather information concerning the identification or earnings" and to gather any relevant information (Clause 7);
* to subpoena any witnesses "including any person legally liable to maintain any other person" to give evidence or produce any proof the maintenance officer "may in particular require" (clause 9);
* to make an order in relation to "lying-in expenses incurred by the mother in connection with the birth of the child and of expenditure incurred by the mother from the date of the child's birth to the date of the "enquiry", and the same applies to medical expenses for the child ;
* to forward the name of a person convicted of an offence to a credit bureau (clause 27);
* to attach the property of a person convicted of an offence (clause 28(2)(b).
It is recommended that-
(1) There must be one procedure which is uniformly followed by all maintenance officers.
(2) Maintenance officers should be granted very little discretion, if any.
(3) There is a dire need for training of maintenance officers. Such training should include training on maintenance -related matters, gender sensitivity and human rights.
(4) There should be an investigation into the need for opportunities of advancement and promotion of maintenance officers.

MAN 45 (Women on Farms Project):
Clauses 4(1) and 5, dealing with the appointment of maintenance officers and maintenance investigators leave a discretion regarding the appointment of these important functionaries. It is suggested that there be a greater emphasis on the appointment of these functionaries, possibly within the limits of a specified time frame.

CLAUSE 5
MAN 30 (Law Society of the Cape of Good Hope):
Maintenance investigators should be required to equip themselves for such position with appropriate financial and legal knowledge. Knowledge and/or experience in this field should suffice. It is not suggested that such positions require academic training at university level.

MAN 31 (Y de Jong):
Tracing - The incidence of missing fathers is high. There will be a need for a budgetary allocation in this regard.

MAN 35 (SA National Council for Child Welfare):
Clause 5 is supported. It is, however, suggested that the courts give serious consideration, whenever the need arises, to using the services of social workers as maintenance investigators. A professional report with a recommendation can be submitted by a social worker.

MAN 36 and 36a (South African Law Commission):
The function of a maintenance investigator should go beyond that of a mere tracer who will only locate persons and serve process on them. The maintenance investigator should assist the maintenance officer in the investigation which he or she is required to carry out in respect of a complaint. This entails, amongst others, establishing the respective financial positions of the parties concerned. For this purpose the maintenance investigator must have access to as many sources of information as possible. Specific amendments have been suggested and these are set out in the attached Bill.

MAN 41 (Black Sash):
(A) Simply getting a maintenance order is a lengthy process. Many applicants don't succeed in obtaining an order in the first place, with the respondent evading service of subpoenas. The introduction of maintenance investigators is very useful. However, investigators must be budgeted for. The question is raised how much has been set aside for this purpose and in which centres will they be employed.

(B) Maintenance investigators should also be given specific powers to obtain information from banks, the Department of Home Affairs, vehicle licencing authorities, Deeds registries, Registrar of companies and Commissioners of Inland Revenue.

MAN 42 (South African Human Rights Commission):
The clause is a practical innovation, which will significantly improve the process of obtaining an order. The maintenance system is designed to be negotiated without an attorney. Attorney's fees are prohibitive, and legal aid is not available for maintenance applications. The Commission welcomes the addition of an investigator to work in conjunction with a maintenance officer.

CLAUSE 6
MAN 35 (SA National Council for Child Welfare):
A subclause should be included that emphasises the need for the co-operation of employers when maintenance investigations are carried out. The employer must be made aware of the fact that there are children whose needs have to be met and that his or her employee has an obligation to support his or her children.

MAN 39 (National Association of Democratic Lawyers):
The provisions of clause 6 will become problematic where, for example, the child lives with a grandparent in a rural area and the mother lives and works in the city. It is recommended that the complainant be allowed to lodge a complaint in the area where she lives or works or where the respondent lives or works, depending on which court is most accessible to her.

MAN 41 (Black Sash):
The Bill provides for a maintenance order to be changed if "good cause" exists for such a change. The wording used in the present Act is "sufficient cause" It is assumed that this is done, because in many instances respondents against whom orders have been made, often return to court for a reduction of the maintenance order shortly after it is made as they feel aggrieved by the order. The question is whether "good cause" is an adequate deterrent to such an abuse of the court process. "Good cause " may need an explanation, or one may need to use a phrase such as "a material change in the circumstances" of the party.

MAN 42 (South African Human Rights Commission):
This Commission raises a question regarding the discretion which a maintenance officer has in instituting an enquiry or not, by the use of the word "may". It may be advisable to contextualise the discretion, by including a reference to an objectively determined standard, such as "...having established a prima facie case..." or '...on good cause shown....". This will not only provide a clearer indication to a maintenance officer of what his or her role is at this stage, but will allow the improper exercise of the discretion to be more readily challengeable. It is recommended that an objective qualifier circumscribes the discretion of the maintenance officer. The Commission also questions the desirability of the words "good cause" used in order to discharge or substitute a maintenance order and whether they should not be defined and linked to a change in circumstances.

CLAUSE 7
MAN 42 (South African Human Rights Commission):
Until now, an officer has had to rely on the respondent to arrive at court with sufficient proof of income, expenditure, assets and liabilities, and many postponements occur at this stage, because little or no documentation accompanies the parties to an enquiry in front of the officer, and no assessment can be made. It may be advisable to reword clause 7 to provide a straightforward process which is to be followed in every matter. To short-circuit any delays, both parties should immediately after the complaint is laid, be subpoenaed to the investigative hearing, with an indication that documentary proof of assets, liabilities, income and expenditure is required, (a subpoena duces tecum). The use of an automatic subpoena at this stage will encourage full disclosure at an early stage, and allow the officer to make an informed assessment of the matter. In addition, disclosure at this juncture may encourage more matters to be settled, as the parties will be in a position to make their own assessments. Non-compliance will open a party up to the usual offences for non-compliance with a subpoena. It is recommended that consideration be given to the introduction of clear procedures for the investigative hearing envisaged in clause 7, with emphasis on the automatic issuing of subpoenas duces tecum to both parties.

MAN 45 (Women on Farms Project):
The granting of the maintenance officer a discretion to institute an enquiry by the use of the word "may" does not guarantee women that a maintenance officer will investigate a maintenance claim.

CLAUSE 8
MAN 30 (Law Society of the Cape of Good Hope):
Clause 8(4) - Section 10 of the principal Act provides for a person who wilfully 'obstructs' a maintenance enquiry. It is suggested that this phrase be included in this subsection.

MAN 35 (SA National Council for Child Welfare):
The view is held that all parties should appear in court even if they have given satisfactory information given in advance, as contemplated in clause 8(2)(b).

MAN 39 (National Association of Democratic Lawyers):
Clause 8(4) states that a person who refuses or fails to furnish information regarding the identification, place of residence or employment, or earnings of the person (allegedly) liable to pay maintenance, will not be sentenced to imprisonment unless the magistrate "is of the opinion" that it is necessary for the administration of justice. This undermines the efficacy of the Bill. Although a prison sentence is believed not to be appropriate for a person who fails or refuses to co-operate, some kind of penalty should be given to people who refuse to give information which is essential for the proper administration of justice. It is therefore recommended that any person who withholds information deliberately should be charged with contempt of court and bear the penalties associated with it.

MAN 41 (Black Sash):
Clauses 8 to 10 - It seems as if the intention of the Bill is to retain a two-stage enquiry. It is, however, not clear how these two stages work. In the first enquiry the subpoena must detail all the documents required by the court, in plain English and the language of the respondent. The practice of not issuing subpoenas for the enquiries until the respondent proves intractable, should be stopped by ensuring that subpoenas are issued for the first enquiry. It should be clarified that the first enquiry, in front of the maintenance officer, must be referred to a magistrate for the second or final enquiry if no agreement is reached in the first enquiry.

MAN 45 (Women on Farms Project):
The examination of persons by a maintenance officer who can give relevant information concerning those who default on their maintenance payments is an important one to resolve maintenance issues. It is suggested that the word "may" in clause 8(1) be changed to "shall". Women on the farms state how difficult it is to get witnesses to be subpoenaed for court appearances. It is necessary to compel maintenance officers to use these provisions.

CLAUSE 9
MAN 35 (SA National Council for Child Welfare):
Clarity in clause 9(2)(b) regarding persons who are exempted is required.

MAN 45 (Women on Farms Project):
The requirement of an examination of persons by a maintenance officer who can give relevant information concerning those who default on their maintenance payment is an important one. The commentator suggests that the word "may" in clause 9(1) be changed to "shall", ensuring that an enquiry is instituted.

CLAUSE 10
MAN 28 (Maintenance Action Group):
If the respondent has a legal representative, the complainant should also have one. The NGO's should be allowed to represent their members in the enquiry if they so desire.

MAN 39 (National Association of Democratic Lawyers):
Clause 10(3) grants a person "against whom a maintenance order may be made", the right to legal representation. Does this mean legal representation at own 'cost or at the State's cost? The Legal Aid Guide of 1998 clearly states that a claim for maintenance may be determined without the assistance of a legal practitioner. Clearly, this has implications for the women who use the maintenance system and who are unable to afford legal representation. Allowing one party to have access to legal representation, while the other does not, also has consequences for the fairness of proceedings. It is recommended that legal aid be made available in maintenance cases.

MAN 41 (Black Sash):
Clauses 8 to 10 - It seems as if the intention of the Bill is to retain a two-stage enquiry. It is, however, not clear how these two stages work. In the first enquiry the subpoena must detail all the documents required by the court, in plain English and the language of the respondent. The practice of not issuing subpoenas for the enquiries until the respondent proves intractable, should be stopped by ensuring that subpoenas are issued for the first enquiry. It should be clarified that the first enquiry, in front of the maintenance officer, must be referred to a magistrate for the second or final enquiry if no agreement is reached in the first enquiry.


CLAUSE 11
MAN 29 (Law Society of South Africa):
Although it is not mandatory for a court to order that a person against whom a maintenance order may be given be compensated, it seems a bit ill conceived to compensate a person who may have wilfully fallen foul of the law, as is contemplated in clause 11(2).

MAN 30 (Law Society of the Cape of Good Hope):
Clause 11(4) is confusing. If it is intended that this subsection protect a person against incrimination, then it is suggested that "said" be substituted for "such".

MAN 39 (National Association of Democratic Lawyers):
The view is that the provisions of clauses 11(1) and (2)(b) are outrageous. If the Department of Justice is going to go to such lengths to accommodate defaulters, the same should apply for complainants. They are, in reality, the people who deserve this "benefit". It is therefore recommended that women should be entitled to a stipend for their travel expenses.

CLAUSE 12
MAN 29 (Law Society of South Africa):
If a maintenance court cannot use a statement because the person against whom the order may be made has objected to its being admitted as evidence as contemplated in clause 12(2)(b), this may result in an injustice to the complainant. The fear is that most persons would object to the statements which may defeat the purpose of the maintenance enquiry. The question is raised whether it would it not be better if the objector was to show cause or valid grounds why the statement should not be used?

MAN 45 (Women on Farms Project):
Many women on the farms are not literate. It is hoped that maintenance officials will be sensitive to this in their dealings with these women in issues surrounding documentary as opposed to oral evidence.

CLAUSE 13
MAN 35 (SA National Council for Child Welfare):
The clause will be of great assistance in ensuring that proper records are maintained. Having knowledge of all existing orders will protect children. It has been difficult to pursue a claim of maintenance if the respondent has moved to another part of the country.

CLAUSE 14
MAN 35 (SA National Council for Child Welfare):
It is important that the provisions of section 236 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), be included in the clause for easy reference.

CLAUSE 15
MAN 35 (SA National Council for Child Welfare):
It is recommended that the provisions of section 35 of the Black Administration Act, 1927 (Act No. 38 of 1927), be included in the Bill.

MAN 39 (National Association of Democratic Lawyers):
The Bill only recognises customary unions as defined in the Black Administration Act, 1927 (Act No. 38 of 1927). This discriminates against other cultures and may be open to a constitutional challenge for creating a "hierarchy" of cultures. It is recommended that all customary unions, irrespective of the religion or culture, should be recognised.

MAN 42 (South African Human Rights Commission):
Clause 15 provides for a presumption of marriage in customary unions for the purpose of the Bill, and obligations to maintain. However, this presumption would be more appropriately set out in the definition clause, rather than in the body of the Bill. It is therefore recommended that the provisions relating to customary unions be set out in the definition section of the Bill.

CLAUSE 16
MAN 28 (Maintenance Action Group):
Children from the first relationship should be given equal attention or first preference, especially in cases where the first child was born out of wedlock.

MAN 27 (Philip Kalmonowitz):
Mr Kalmonowitz suggests that principles relating to the duty of support of children towards their parents should also be set out in this clause.

MAN 30 (Law Society of the Cape of Good Hope):
(A) The clause amounts to a restatement of the Common Law. It is dangerous to
attempt to restate the Common Law in a statute. It is recommended that the clause be deleted in its entirety, failing which the following is relevant: -
* clause 16(1) should be amended to use the term "parents" instead of "natural parents" since the latter excludes adoptive parents;
* in clause 16(2) the duty does not "encompass" but "includes" the provision of food, clothing etc; it is suggested that the appropriate amendment be made;
* in clause 16(3) (a)(i) there is a significant shift to support on a pro rata basis, whereas the existing legislation places an equal or joint obligation on parents to support children;
* no provision in this clause is made for the needs of the respective parties themselves to be taken into account when apportioning the maintenance obligation of each party;
* no mention is made of the adoptive situation;
* in clause 16(3)(a)(ii) the distinction created between children of divorced parents and children born out of wedlock is queried; it seems as if there are two different tests to be applied to each of these circumstances.

MAN 32 (Focus on Elder Abuse):
There is a criminal sanction against a parent who fails to maintain a child, but no corresponding statutory crime against children who fail to do so. There are, however, problem areas, eg the parents could have squandered their means, or abused or abandoned their children previously, elderly people may not be willing to report their children for failing to provide for them, etc.

MAN 33 (Transitional National Development Trust):
In the determination of the amount of payment to be paid as maintenance the following should be taken into account:
(i) The parties' total income, including investments.
(ii) The standard of living that the respondent maintains for himself.
(iv) The increasing cost of living as well as education costs.
(v) The standard of living that the respondent has created for his or her children, if any.
(vi) The court should on giving an order to pay maintenance have the power to grant a garnishee order in favour of the complainant. Married men who have children born out of wedlock should not be exempted from the above. The same rules should apply to women who fail to support their children.

MAN 35 (SA National Council for Child Welfare):
Sometimes it is expected in customary law for grandparents to look after their grandchildren with their meagre pensions. The need for money to support these grandchildren forces the grandparents to apply for foster care grants. Urgent consideration should be given to enabling these grandparents to apply for a state maintenance grant rather than a foster care grant. A fully motivated report by a social worker may be useful.

MAN 36 and 36a (South African Law Commission):
The Bill seems to approach the issue of maintenance from the point of view that provision of child support is the most important component of a maintenance system without recognising the other relationships that can give rise to a duty of support at Common Law. This approach does not recognise the fact that the duty of support between a parent and child is a reciprocal one and can upset the application of the Bill to other maintenance obligations which are not based on a parent-child relationship and may have the effect that persons not falling within the scope of the Bill will have to institute a civil claim for maintenance. The Bill would also seem to be attempting to codify the duty of support owed by a parent to a child. It is suggested that bare essentials which are mentioned in the Bill cast this duty of support in very narrow terms. It is argued that if the intention of the Bill is to provide guidance to the courts on the determination of an appropriate amount of maintenance, then to partially codify the Common Law will not serve this purpose and it is suggested that clause 16 be deleted and that the power of the Minister to make rules as provided for in clause 40(c) would suffice.

MAN 37 (Mr Michael Horton):
The clause could be better drafted, for instance, why is clause 16 (3)(a)(ii) limited to a child of divorced parents?

MAN 41 (Black Sash):
The attempt to codify the Common Law in clause 16 may be seen as useful in the light of the research that has been conducted. However, the Common Law is not set out thoroughly. For example, clause 16(2) does not encompass all the expenditure one legitimately incurs with regard to children.

MAN 42 (South African Human Rights Commission):
Clause 16 appears to be a codification of the Common Law relating to the duty of support and maintenance, possibly for the purposes of clarity for both users and administrators of the Bill. However, the formulation of the Common Law position places emphasis on the obligation of parents at the expense of the other Common Law duties of support. It may be useful to set out a clear exposition of the Common Law in this regard, as a reference point for officers and magistrates. However, it should clearly reflect the legal position, and all duties. Further, any codification of Common Law duties of support would be well advised to address a problematic aspect of the case law, namely that certain grandparents of extramarital children are not obliged to support such children. This is clearly discriminatory, and legislation needs to correct the notion. It is recommended that the Common Law position be set out thoroughly and accurately in the Bill, and further that discriminatory aspects of the Common Law be addressed and corrected.

CLAUSE 17
MAN 30 (Law Society of the Cape of Good Hope):
It is suggested that specific provision be made for payment of school fees in periodic instalments. Regarding subclause (2), the introduction of an automatic garnishee order is applauded. It is suggested that the UIF card of a person who is liable for payment of maintenance should be endorsed to reflect the obligation to pay in terms of a garnishee order so that a new employer is automatically notified of the obligation.

MAN 36 and 36a (South African Law Commission):
Clause 17(2) of the Bill obliges the court making a maintenance order to order the recovery of the maintenance amount from the wages of the person concerned. The court is also given the discretion not to make such an order if it is satisfied that the person does not have an employer or that it is impracticable or inappropriate to make such an order. This approach still leaves too much of a discretion not to order the recovery of the maintenance amount from a person's wages, especially if regard is had to the inclusion of circumstances that are "inappropriate" as a ground not to make such an order. As a general rule maintenance payments should be recovered from the maintenance debtor's income. This should be the automatic consequence of the making of a maintenance order without obliging the court to make an order to this effect. The exception to this should be where the court is of the opinion that the recovery of maintenance payments from the maintenance debtor's income will be impracticable. To achieve this it is proposed that a statutory duty be placed on persons responsible for the payment of income to maintenance debtors to deduct and pay over the relevant amounts. The income that may be taken into account for this purpose should include more than just the wages or salary of the person in question. Income from a profit sharing agreement, trust, long term contract for the rendering of services etc. can be included in a person's income . Failure by an employer to comply with the order of the maintenance court in terms of clause 17(2) leads to criminal liability in terms of clause 36. It is proposed that a failure to comply with the statutory duty proposed above should render the person to whom the duty applies personally liable for execution of the maintenance order, in addition to any criminal sanction that may apply. This is necessary in order to minimise the hardship of a maintenance creditor which may be suffered because of failure of the person concerned to comply with his or her duty under the Bill. Prosecution under clause 36 alone will be of no benefit to the maintenance debtor. Specific amendments are suggested which are set out in the attached Bill.

MAN 39 (National Association of Democratic Lawyers):
While the Bill makes provision for garnishee orders once a maintenance order is made, it states that the court can only make this order if it is not "impracticable" or "inappropriate". The concern is that this provision may once again be used as an excuse by the court and the employers not to make use of garnishee orders. It is recommended that-
(a) Where the respondent is employed, a garnishee order should automatically be issued.
(b) The words "impracticable" and " inappropriate" should be deleted.

MAN 41 (Black Sash):
Clause 17 should be expanded to include educational expenses. Garnishee orders are a useful intervention. Clause 17(2)(b) should not use the word "inappropriate"; it should be a matter of course that such orders are made.

MAN 42 (South African Human Rights Commission):
(A) The word "appropriate" used in clause 17(2)(b) is too wide and ill defined, and allows an escape route. Applicants who have already obtained maintenance orders under the current Act should also be given an opportunity to approach a court to obtain an order against the respondent's employer, so as to extend the benefit of this provision. It is recommended that the use of "appropriate" in relation to the imposition of an order against an employer be critically considered.

(B) Educational expenses - The eventual order of a maintenance court can encompass a specific order relating to medical expenses, in addition to an order for ordinary day to day maintenance. It has often been suggested that specific provision be included into the Act to cover specific educational expenses, such as school fees or school supplies. It is recommended that the Committee consider the inclusion of a specific order for educational expenses.

CLAUSE 20
MAN 30 (Law Society of the Cape of Good Hope):
No provision is made for costs orders. It is suggested that magistrates should have the discretion to make appropriate costs orders, for example, in circumstances where the court process is abused. Provisions similar to those contained in the Divorce Act could be considered i.e costs orders do not necessarily follow the result and magistrates have a greater discretion in granting such orders.

CLAUSE 21
MAN 27 (Philip Kalmonowitz):
The court should not be competent to inquire into the genealogy of a child in any case where a parent has maintained a person as his or her child.

MAN 35 (SA National Council for Child Welfare):
The view is expressed that the State should not foot the bill for these tests. The father of the child, if paternity is proved, should pay.

MAN 45 (Women on Farms Project):
In the case of interlocutory orders, the word "may" in clause 21 must be replaced with "shall", as this will compel the court to order scientific tests and enquiries to be carried out.

CLAUSE 22
MAN 31 (Y de Jong):
Currently many courts issue warning letters and do not subpoena the respondent. This proposal is dependent on the issuing of subpoenas, which has cost implications.

MAN 36 and 36a (South African Law Commission):
The maintenance court currently has the power to make a maintenance order against a person who is not present at an enquiry with that person's consent. This power can simply be extended to apply to a person who was duly summoned to appear at an enquiry instead of providing a whole new procedure to accomplish this. What should be added is a procedure for the variation or rescission of an order made in the person's absence. This procedure should entail an onus on the person applying for a variation or rescission to satisfy the court that his or her failure to appear at the enquiry was not due to his or her fault and that there are sufficient grounds to justify a variation or rescission. It is also imperative that the person in whose favour the order was made be given an opportunity to oppose the application for variation or rescission. Specific amendments in this regard are set out in the attached Bill.

MAN 41 (Black Sash):
Orders by default will be very useful. It needs to be made explicit that these orders may be followed by garnishee orders.

MAN 42 (South African Human Rights Commission):
Clarity is needed on the status of a default judgment for the purposes of execution. It may be advisable to simply state that such a judgment has the effect of a civil judgment, which will allow an applicant to commence proceedings for recovery. It is recommended that-
* consideration be given to the introduction of a garnishee order in a default order in appropriate cases; and
* the introduction of clear provisions relating to the effect of a default judgment for the purposes of recovery.

MAN 45 (Women on Farms Project):
The word "may'' in clause 22(2),(4)(c) and (5) must be replaced with "shall" if this legislation is to have any positive effect.

CLAUSE 24
MAN 45 (Women on Farms Project):
The word "may" in clause 24(1) must be replaced with the word "shall", as this will facilitate the administrative process of transferring maintenance files.

CLAUSE 26
MAN 40 (Attorney-General, Grahamstown):
Clause 26 provides for the right to appeal against an order by a maintenance court. Three questions arise in this regard:
* If the complainant wishes to appeal, should provision not be made for legal representation to conduct the appeal in the High Court or even in the Supreme Court of Appeal?
* If the respondent appeals, the other party certainly has an interest in the outcome of such an appeal. It is also in the interest of justice that both parties are represented. Should provision not be made for appearance on behalf of respondent?
* The Criminal Procedure Amendment Act, 1997, requires an accused person who wishes to appeal to apply to the court which convicted and sentenced him or her, for leave to appeal. Should the same approach not be followed with appeals against maintenance orders?

MAN 45 (Women on Farms Project):
It is not clear whether legal aid will be provided for these appeals.

CLAUSE 27
MAN 28 (Maintenance Action Group):
Persons who fail to pay maintenance for their children should not be sent to jail, if they are employed . Periodical sentences, weekend jail or community service should be used. Black listing with the credit bureaux should be invoked when a person fails to pay.

MAN 39 (National Association of Democratic Lawyers):
Clause 27(1) provides that a person who fails to make payment in accordance with a maintenance order shall be guilty an offence and on conviction be liable to be sentenced to imprisonment. Imprisonment is not often used as a sentencing option and these provisions have lost their deterrent effect. It is suggested that presiding officers make greater use of other innovative sentencing options, eg correctional supervision rather than a suspended sentence. Reference is also made to the successful programmes conducted in places such as California, which has a Child Support Enforcement Program. Photographs of maintenance defaulters are posted on the Internet, with a personal profile of the offender and details of who to contact about such person's whereabouts. The negative publicity associated with such a step may act as a deterrent to some defaulters. In addition to this, the Programme runs a "responsible fatherhood campaign" where they use prominent sportsmen to get all fathers to accept "the duty and honour of responsible fatherhood". It is recommended that-
(a) Penalties should have a punitive as well as a deterring effect.
(b) Correctional supervision should be used to ensure a commitment to pay maintenance on the part of defaulters.

CLAUSE 28
MAN 30 (Law Society of the Cape of Good Hope):
It is recommended that, where a maintenance order is granted, it should create an obligation on the person liable to make payment to advise the court timeously of his or her inability to pay. This will assist the person entitled to receive maintenance who is presently required to pursue a criminal prosecution only to be advised, at some later stage, that the person liable to pay maintenance is unemployed, unable to pay and unlikely to be ordered to pay. If this recommendation is supported, it follows that the criminal prosecution should be converted to a section 17 enquiry. The measures created in the Bill to assess and compel payment of maintenance are still inadequate to the extent that they do not go far enough in dealing with the actual recovery of maintenance or arrear maintenance. There are still no real tools for dealing with the person who is not employed in the formal sector, who is financially able to pay maintenance but who refuses to do so. It is recommended that maintenance orders be treated as judgments for civil debt. Provision should be made to set aside warrants of execution on the usual grounds.

MAN 36 and 36a (South African Law Commission):
The procedures for the execution of a maintenance order and the enforcement thereof (through criminal action) should be separated. A maintenance order should be seen as a final order of a court for the payment of an amount in instalments to another person and should be executable as such without requiring the person in whose favour the order was made to initiate further court proceedings. The execution of a maintenance order should therefore be placed on par with the execution of a civil judgment of the Magistrate's Court for the payment of money . To achieve this it is proposed that a part dealing with the execution of maintenance orders be inserted in Chapter 4 of the Bill. The amendments proposed by the Commission in this regard are set out in the attached Bill.

MAN 45 (Women on Farms Project):
In clause 28(1) "may" must be changed to "shall".

CLAUSE 39
MAN 35 (SA National Council for Child Welfare):
The keeping of records and the photographs of persons subject to maintenance orders will make it difficult for such persons to abandon their families as tracing will be much easier.

CLAUSE 40
MAN 45 (Women on Farms Project):
Publishing the rules as they may change in the Government Gazette from time to time, needs to be communicated verbally to women on farms, by the maintenance officials who will implement them. It would seem as if what this commentator has in mind is public awareness campaigns.

GENERAL
MAN 28 (Maintenance Action Group):
The following general comments were made:

* The Bill still places the burden of pursuing maintenance on women and will lack enforcement.
* Provision should be made that if both parents are working in a place other than where the children live, the mother can apply for maintenance and the money can be sent to the person who looks after the children.
* The women who expose themselves to humiliation in the maintenance courts are those who are the poorest, and they put themselves in a more vulnerable position by pursuing the father of their children.
* There should be a more participatory process which involves the people who are directly affected in the drafting of legislation on maintenance.
* Employers, shop stewards and /or supervisors should be empowered to sign subpoenas and summons on behalf of employees.
* There should be a statutory minimum payment for maintenance.
* In cases of delays in the finalisation of maintenance cases, payments should start from the date of the application.
* Courts must make a garnishee order from the first day when the respondent agrees to pay.
* People who volunteer for stop-order arrangements should be given the application form rather than waiting to have a court date set and NGO's should be allowed to make arrangements for providing and/or processing stop orders.

MAN 31 (Y de Jong):
The Bill is a necessary but inadequate intervention. Very little has been done administratively to address existing problems. Adequate resources will have to be made available if the Bill is to be successfully implemented.

MAN 33 (Transitional National Development Trust):
The following recommendations were made:

* Failing to maintain a child should be treated as a crime and be subjected to the criminal legal processes.
* A body or a team should be set up for the tracking down of offending parties as well as conducting an investigation on their ability to pay maintenance.
* The abovementioned team should, when conducting investigations, have access to personal information held by the receiver of revenue, deeds office, banks etc. Using the media, such as the television and daily newspapers, as a tracing mechanism could be ideal.

MAN 35 (SA National Council for Child Welfare):
The following general comments were made:

* There is a need to have a fully equipped court system, manned by well trained professionals who have the expertise, integrity and capacity to deal with this serious matter, as well as adequate resources and backup services from both the State and the NGO's.
* In cases where the maintenance court is not able to make a maintenance order, the court should have the power and authority to recommend that the affected party should qualify for State assistance by issuing a minute in this regard so that the family can qualify for a State maintenance grant in respect of the minor children.
* In instances where a court makes an order and if it is felt that the parent who has custody of the child cannot handle the financial aspects regarding the maintenance, which may be due to a variety of reasons such as the inability to handle money, illiteracy etc., in such cases it would be advisable for the court to order a social worker to assist the family by supervising the maintenance received for a specified period of time.
* It is vital that there should be a system which will make the court help "offenders" so that with proper counselling they will voluntarily meet their obligations.

MAN 36 and 36a (South African Law Commission):
The Commission is of the opinion that there are two main problem areas with the maintenance system which require addressing in the Bill. The one relates to the procedures leading up to the making of a maintenance order where repeated visits to the office of the maintenance officer and numerous postponements of enquiries are common complaints. The other relates to the enforcement of maintenance orders by way of conviction of maintenance defaulters, which is widely accepted to be ineffective.
In both the above respects the Bill does not provide adequate relief.

MAN 37 (Mr Michael Horton):
Most of the Bill is simply a repetition of the existing Maintenance Act, 1963. The Bill does not even include the provisions recommended by the Law Commission in its interim report of May 1998. It will still be necessary to secure a conviction before any orders for the recovery of unpaid maintenance can be made.

MAN 38 (Magistrate Heinz Kuhn):
(This submission was based on the draft Bill, prepared by the Department for comments and not on the Bill as introduced into Parliament)

Mr Kuhn indicated that he supports the earliest possible amendment of the Maintenance Act, as it is wholly ineffectual and exceptionally limited in providing effective enforcement of maintenance orders. In his oral submission the following issues, amongst others, were raised:
Guidelines should be drafted to assist magistrates in the determination of the level of maintenance.
The non-payment of maintenance should not be decriminalised.
The idea of warrants of execution for maintenance defaulters should be supported.

MAN 39 (National Association of Democratic Lawyers):
The following general comments were made:

* In terms of the South African law, there is a Common Law and constitutional duty (section 28(1)(b) and (c) of the Constitution) on both parents to support their children. However, this duty often falls squarely on the shoulders of mothers.
* It is suggested that the Department of Justice and other law-making bodies consider the idea of using plain language. The technical language used in this Bill has the potential of making it inaccessible to advice workers who are often the only source of assistance for maintenance court users.
* It is common knowledge that a great deal of the difficulties experienced by women who use the maintenance court, relates to the inability or unwillingness of maintenance officers to carry out their duties.

MAN 42 (South African Human Rights Commission):
The following general comments were made:

* The process of obtaining an order is unnecessarily long and complicated, and the period of time between an application and the order eventually being made results in grave financial prejudice to the custodian parent and ultimately to the child in question.
* Maintenance courts are understaffed, and backlogs are enormous. Maintenance officers struggle to keep up with the complaints, and are unable to provide prompt and effective service.
* In a recent study conducted by the Black Sash it emerged that vast discrepancies in the understanding of the basic principles of the Common Law relating to maintenance was established amongst maintenance officers. This highlights the need for the training of personnel who are responsible for assisting applicants.
* It may be possible to make provision for an automatic escalation to an order on an annual basis, so as to prevent standard applications for increases. The onus could be on the respondent to oppose the increase. The benefit of placing the onus on the respondent in this regard, is that the custodian parent and child will not suffer the financial hardship of lower payments, and time off in court. It is recommended that consideration be given to the inclusion of an automatic annual escalation clause.
* Divorce orders and consent papers often make reference to maintenance payments, which are in addition to payment of a portion of specific expenses, such as medical or educational expenses. Applicants are often unaware that a maintenance court order is composite, with only medical expenses capable of forming a separate category. This should be made clear either in the wording of the Bill, or more appropriately in the wording of the form which is filled in by the complainant. It is recommended that consideration be given to introducing new provisions to provide clarity on replacement of High Court maintenance orders.

MAN 45 (Women on Farms Project):
The following general comments were made:

* Access to the private maintenance system is problematic. Women on the farms struggle to exercise the rights of their children.
* It is mostly the women on farms who make the majority of applications for private maintenance. The physical access to courts from farms to town means a costly taxi fare, a day's missed pay and waiting in queues.
* Maintenance officers wait too long, when parents don't pay maintenance, before acting.
* Maintenance officers need training - they need to be gender sensitive particularly to women's issues.
* Maintenance officials are perceived as unprofessional in their work, not doing their work properly, for example, the tracing of fathers is often left up to the women themselves, as well as having to serve summons on the fathers themselves.
* Fathers and their families withhold information and are not compelled to give evidence.
* Subpoenas posted to the fathers are often torn up by the fathers and family members as the sheriff of the court would not deliver them personally.
* Fathers get away with not appearing in court.
* Courts are inaccessible physically and administratively.